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Category Archives: Pretext

President Donald Trump’s recent termination of FBI Director James Comey belongs in a textbook on employment discrimination. It shows the way employers can get into legal trouble when firing an employee. It is such a textbook example of a “bad termination,” in fact, that an employer seeking to minimize its exposure to a termination-related lawsuit would do well to look at the President’s handling of the Comey termination, and do exactly the opposite. The issue we examine today is whether the President’s stated reason for firing Director Comey – Comey’s alleged mishandling of the Clinton emails – is unworthy of credence and a pretext for some other motive.

Comey’s investigation of Secretary Clinton’s emails took place and was complete before Trump was elected President. To the extent Comey mishandled anything, Trump clearly knew about it on the first day he took office. Yet, he waited 108 days to fire him. Just a few days before his termination, Comey asked the Deputy Attorney General for additional resources to investigate Trump’s Russia connections. Trump, it turns out, also asked the Deputy Attorney General to draft the memo that Trump cited in his termination letter to Comey, without telling the DAG the memo would be used for that purpose. Trump also publicly declared that Comey had lost the confidence of the men and women in the FBI and that FBI did not consider the Russia investigation a serious matter. Trump now says that he was going to fire Comey irrespective of the DAG’s memo. The Acting FBI Director has just testified to a Senate Committee that rank-and-file FBI employees broadly and positively support Comey, and that the Bureau considers the Russia investigation to be a very serious matter, contradicting Trump’s assertions otherwise.

Let’s evaluate the evidence so far. We see that Trump terminated Comey almost immediately after Comey requested additional resources to investigate the President’s Russia connections (unusually suggestive temporal proximity, quick on the trigger). He then attempted to justify his termination decision with a reason that was previously known to the Administration for many months (slow on the trigger, if Comey had previously committed terminable offenses, why didn’t POTUS fire him on Day 1 of his Administration?). Trump then caused documents to be created purporting to justify his termination decision (document manipulation). He then tried to paint the DAG as the real decisionmaker, whose advice Trump was merely following (hiding the decisionmaker). Then Trump said the DAG’s memo was really not all that important and he would have fired Comey regardless (shifting reasons). Then he alleged that part of the reason he fired Comey was because Comey had allegedly lost the support of rank-and-file FBI employees, which turns out to be false (reason contradicted by objective facts). Undoubtedly we will learn more facts putting the lie to Trump’s articulated reason for firing Comey (e.g., new reports that when Trump twice asked Comey for personal loyalty, Comey pledged only honesty, saving his loyalty for the law and for the American people). But we can clearly see even with the few facts developed so far that Trump is not being honest about his reason for firing Comey. From that dishonesty, we can reasonably infer that Trump’s stated termination reason for firing Comey is pretextual, and is designed to conceal Trump’s true motive – most likely to interfere in the FBI’s continuing and escalating investigation of Trump’s possible collusion with a foreign adversary to subvert a U.S. election.

What are some of the other mistakes that Trump made that increased rather than decreased the likelihood of fallout? For starters, he ignored Comey’s popularity inside the Bureau and terminated Comey in a humiliating fashion, in a terse letter delivered to FBI headquarters rather than Comey himself. Comey learned of his termination only after press reports appeared on television during a speech Comey was delivering to FBI employees, many of whom broke down in tears at the news. Second, he publicly demeaned and insulted Comey, knowing that Comey could not respond publicly without appearing biased, and again deeply alienating Comey’s supporters. Third, he assumed that Democrats were like him, that is, spiteful and vindictive, and completely discounted the notion that Democrats wanted to learn the truth about Trump’s Russia connections and potential coordination with Vladimir Putin in subverting the election. While Democrats had good cause to be critical of Comey for putting his thumb on the scale just days before the 2016 election, they also wanted the FBI’s Russia investigation to proceed without political interference. Trump erroneously assumed that Democrats would welcome the news of Comey’s termination and was taken aback when Senator Schumer told Trump that firing Comey was a very serious mistake.

For a person who brags that he is the greatest personnel manager who ever lived, Trump’s manner of terminating Director Comey reflects a staggering level of incompetence and naivete, the blow back on which a first year law student could have seen coming from a mile away.

President George H.W. Bush signing the landmark Americans with Disabilities Act in 1990. 24 years later, in EEOC v. LHC Group, Inc., 12/14/14, the Fifth Circuit revived a significant ADA case finding that the questions whether a home health care nurse was promoted to a team leader position, whether driving was an essential function for that position, and whether the employee’s inability to drive due to a seizure disorder could have been accommodated in that role were questions for a jury.

Tthe employee provided home health care to patients; she also spent “a couple of hours” traveling between patients. In March 2009, her supervisor decided to promote her to a team leader position, though the parties disputed whether she was actually promoted or simply training for the position. Team leaders manage patient care, communicate with doctors and pharmacists, schedule field nurses, and fill in when nurses are absent.

On May 26, the employee had a grand mal seizure at work and was taken by ambulance to the hospital. Her doctor released her to work two days later. On June 1, the employee discussed her medical condition with her supervisor and the director of nursing (DON). They gave her a copy of the team leader job description and asked for a release from her neurologist. He reviewed it, added a note to it stating “no driving x 1 year, no working on ladder,” and released her for work. She discussed the limitations with her supervisor and the DON; the three agreed that she would get rides to work from a coworker who lived next door to her.

The employee’s anti-seizure medicine made her “very tired” and she had memory problems. When she returned to work, she asked her supervisor for extra help with the computer-related requirements of her job, including remembering passwords and using the scheduling software. According to the employee, the supervisor simply walked away. On June 7, the employee worked a shift as a field nurse; her mother drove her, with the DON’s approval. During the next week, she continued to struggle with several team leader duties. The court found the record unclear on the degree of the employee’s difficulties and whether she was aware of her shortcomings.

On June 19, the supervisor and the DON met with the employee, pointing out several problems with her computer skills, errors with patients, and communication and scheduling problems. They set a target date of July 31 for her to “master” the team leader duties. The supervisor also allegedly told her that if her disability manifested again at work, the company would be in “trouble.” The next Monday, the employee missed work without approval to take a child to the doctor. The same day, the employer received a complaint from a patient who asked that the employee not be sent back to her home. The employee was soon terminated. The HR rep said nothing about her performance but simply stated that she was being let go “because you’re a liability to our company.”

The EEOC filed suit on behalf of the employee and the district court granted summary judgment for the employer on its ADA claims.

On appeal, the Fifth Circuit held that the proper causation standard in an ADA case is whether the employee was “subject to an adverse employment decision on account of his disability.” Turning to the merits, tt was undisputed for purposes of the motion that the employee had a disability. To show that she was qualified, the EEOC had to show she could perform her job’s essential functions with or without a reasonable accommodation. In the court’s view, the district court correctly held that driving was an essential function of the field nurse position and the employer could not have provided a reasonable accommodation that would have enabled her to perform this function.

However, the parties disputed whether the employee had actually been promoted to team leader. The EEOC offered evidence that the employee was a field nurse. Contrary to the court below, the appeals court found triable issues on whether driving was an essential function of the team leader position. The job descriptions for both jobs require a driver’s license, insurance, and access to a dependable vehicle, and they stress that significant portions of daily assignments require travel. However, the deference given an employer’s judgment on what functions are essential is not absolute. The employee estimated that, as a field nurse, she spent a “couple” of hours during her eight-hour day driving, but team leaders drove far less often. And the DON testified that many team leader tasks were performed in the branch office.

The appeals court also found questions of fact on whether the employer could have reasonably accommodated the employee’s inability to drive in the team leader role. While none of the options offered by the EEOC (public transportation, van services, rides from the employee’s mother) would have been a feasible solution as a field nurse because driving was central to that role, those options might have enabled a team leader to perform her duties. Indeed, the team leader job description stated that travel can be done “via car or public transportation.” Thus, there were triable issues on whether driving was essential as a team leader and, if so, whether the employee’s inability to drive could have been accommodated in the team leader role.

The Fifth Circuit also found questions of fact on whether the employer could have reasonably accommodated the employee’s difficulties with the essential computer and communications duties of a team leader. It first noted that the parties disputed the extent to which her disability precluded her from doing computer-related tasks. The EEOC conceded that she struggled, but contested the employer’s assertion that her difficulties predated her seizure. Plus, the employee asserted that her limitations were largely due to an unusually high dosage of anti-seizure medication, which she was in the process of tapering.

In the court’s view, if the employee was “unable to perform her essential computer-based tasks, then LHC had a duty to work with her toward a reasonable accommodation.” She expressly reached out to her supervisor, indicating she wanted temporary help using computer programs and remembering passwords due to her medication levels but her supervisor kept silent and walked away. On this record, a jury could find that the employee was denied an interactive process, the court concluded.

To show a nexus between the employee’s disability and her discharge, the EEOC highlighted that her supervisors criticized her performance only after her seizure and it claimed the criticisms were “exaggerated, unfounded, or fabricated.” It also pointed to the supervisor’s remark that the employer would be in “trouble” if her disability manifested again and the HR rep’s remark that she was fired because she was a “liability” to the company because of her disability. To the appeals court, the lower court erred in ruling that these statements on the EEOC charge were hearsay. They were made by employees speaking on behalf of the company and fell under Fed. R. Evid. 801(d)(2). In addition, the statements were not offered for the truth of the matter asserted. In light of all of this evidence, then, the appeals court found a triable issue on whether there was a nexus between the employee’s disability and the adverse employment decision. The EEOC therefore made out a prima facie case of discriminatory termination.

The court also found questions of fact on whether the employee’s termination for poor performance and inability to perform essential functions was pretextual. Several portions of the record supported the inference that discrimination was a motivating factor in the decision, including the comments about her being a liability for the company and about the company being in trouble if her disability manifested again on the job. For all of these reasons, summary judgment was reversed on the discriminatory discharge claim.

Sometimes a court makes a decision so off-the-charts wrong, so at odds with the facts, and so heedless of the governing legal standard, one can only wonder what prejudice or stereotype motivated the court’s thinking. The dismissal of Caryln Johnson’s age discrimination case by a majority of the Eighth Circuit Court of Appeals is one of those decisions.

Caryln Johnson, born in 1932, joined Securitas Security Services USA as a security officer in 2003. Throughout his seventies Johnson earned a reputation as a dependable employee who never refused a shift. Johnson did not have a regular schedule or post, but was instead offered shifts by field service managers Robert Hesse and Charlie Bunch when they needed someone to fill in for security guards at the sites for which they were responsible. Hesse was impressed by Johnson’s dependability and called him Superman.

Hesse, however, had concerns about Johnson’s advancing age. On several occasions over a three year period Hesse told Johnson he “needed to hang up his Superman cape.” Hesse “also said [that Johnson] was too old to be working.” On one occasion, when Johnson’s wife called Hesse to advise him that her husband was in the hospital, Hesse commented that Johnson “should retire,” “was ‘too old’ to continue working,” and “‘needed to hang up his Superman cape and retire.'” Hesse also compared Johnson to Hesse’s retired father, who was in his 80’s at the time of Johnson’s termination. Hesse told Johnson that Hesse’s father “tried to work, do more than [he] could do.” Hesse testified that he made the comparison to his father in response to Johnson’s acceptance of more work as a utility officer with Securitas. Johnson testified that Hesse “always referenced to his own father who was 86 [and] had to quit [work], and now Bob [Hesse] had to take care of him. He said, ‘You ought to do the same thing. Just drop everything.'” Hesse admitted to telling field service managers, including Bunch, that Johnson “needed to hang up his cape” and that Johnson was “working past his limitations.” Hesse also suggested to other managers that they “prevent [Johnson] from working 50, 60 hours a week.”

So it was until January 25, 2009, when Johnson worked the 4 PM to 8 AM shift at the site of Rail Logistics, one of Securitas’s clients. At about 5:30 AM, Johnson accidentally damaged his patrol vehicle when it came into contact with a stationary semi-trailer. The semi-trailer was not damaged. Johnson’s vehicle was still driveable and Johnson was not hurt. Securitas policy required that accidents be reported as quickly as possible. However, Securitas did not provide cell phones or radios to its security officers, and Johnson did not have access to a telephone at the Rail Logistics site. Johnson tried unsuccessfully to call the office using his own cell phone, but there was no signal.

At about 7 AM, Johnson departed and began driving his vehicle back to the office. He reached Bunch by phone at 7:02 AM and reported the accident. Bunch went to the Rail Logistics site and began preparing an accident report. Bunch spoke with Hesse at this time, and Hesse said that Johnson’s shift went to 8 AM, not 7AM. Hesse told Bunch to contact Sherri Parker in human resources about Johnson’s unauthorized departure from the Rail Logistics site, which was listed in Johnson’s employee handbook as a potentially terminable offense. Hesse called Johnson and told him to expect a call from Parker. Once again, Hesse told Johnson that it was time to hang up his Superman cape and retire. Parker called a short time later, asked Johnson if he was born in 1932, and then fired him for two stated reasons, leaving his shift early and not immediately reporting the accident. Securitas had never before fired another employee for either reason.

The court faced only one question: could a reasonable group of people look at the facts and decide that it was more likely than not that Johnson’s age was a determinative factor in Securitas’s decision to terminate his employment? A nine judge majority comprised of George W. Bush appointees held that the answer was no. Three dissenting judges correctly held otherwise.

It’s difficult to overstate the audacity of the majority’s ruling. The majority literally decided that if a group of eight ordinary people sitting in a jury box took in all the evidence and felt that the scales tipped even slightly in Johnson’s favor, they would be acting outside the bounds of reason. The majority was wrong. A reasonable jury could have ruled in Johnson’s favor based solely on Hesse’s remark that Johnson was too old to be working. It could have decided that Hesse was itching to terminate Johnson because of his age and used the car accident at Rail Logistics as a pretext to do so. To be certain, a jury might also have found in favor of Securitas. But for the majority to hold that to be the only reasonable decision was a gross and impermissible substitution of its own judgment for that of the factfinder.

In addition to the majority’s abjectly incorrect holding, its repeated reference to “the but-for cause” as the standard of causation betrays its political motivation. Every court to consider the issue has held that but-for causation does not mean sole cause. There can be ten but-for causes of a termination and if one of them is age, the employer broke the law. One must also remark on the majority’s use of the phrase “with regards to” and encourage the author of the opinion and those who failed to correct this embarrassing error to revisit their high-school grammar books.